EXHIBIT 10.14
LEASE
DATED: MAY 30, 1997
BETWEEN: PACIFIC REALTY ASSOCIATES, L.P.,
A DELAWARE LIMITED PARTNERSHIP LANDLORD
AND: PLANAR AMERICA, INC.,
AN OREGON CORPORATION TENANT
Tenant wishes to lease from Landlord the following described property,
hereinafter referred to as "the Premises":
Approximately 33,828 square feet of warehouse, production and office
space located in Building E, Evergreen Business Park, 0000 X.X. Xxxxxxxxx
Xxxxxxx, Xxxxxxxxx, Xxxxxx 00000 and as further described on the attached
Exhibits A and B.
If the Premises consist of a portion but not all of a building, the
building housing the Premises is hereinafter referred to as "the Building."
Landlord leases the Premises to Tenant for a term of 92 months commencing
August 1, 1997 and continuing through March 31, 2005. Neither rent, nor the
charges, taxes and expenses to be paid to Landlord specified in Paragraphs 3
and 4 of this Lease, shall be due for the first four months of the lease term.
Base rent shall be according to the following schedule:
BASE RENT PER MONTH
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FIRST SECOND
AMORTIZED AMORTIZED
PERIOD PREMISES AMOUNT* AMOUNT** TOTAL
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August 1, 1997 through November 30, 1997 $ 0.00 $ 0.00 $ 0.00 $ 0.00
December 1, 1997 through October 31, 2000 $11,502.00 $3,015.00 $4,305.00 $18,822.00
November 1, 2000 through October 31, 2003 $12,516.00 $3,015.00 $4,305.00 $19,836.00
November 1, 2003 through March 31, 2005 $13,531.00 $3,015.00 $4,305.00 $20,851.00
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* As specified in Paragraph 25.1.1, and shown on Exhibit D.
** As specified in Paragraph 25.1.2, and shown on Exhibit E.
Rent for the fifth month of the Lease term shall be paid upon execution
of this Lease. All rent, including base rent together with the charges, taxes
and expenses to be paid to Landlord specified in Paragraphs 3 and 4 of this
Lease, is payable in advance on the first day of each calendar month. If
Landlord consents, Tenant may occupy the Premises prior to such commencement
date on a rent free basis and compliance with all terms of this Lease.
Delivery of possession shall occur when Tenant's contractors,
subcontractors, agents and workmen commence construction of the tenant
improvements, as referenced in Paragraph 24 below within the Premises or when
the Premises are ready for Tenant's contractors, subcontractors, agents and
workmen to commence construction of the tenant improvements, as referenced in
Paragraph 24 below within the Premises. No notice shall be required from
Landlord if the Premises are ready on the date set for commencement of the term
or on the first business day thereafter. If Landlord is unable to deliver
possession of the Premises to Tenant because of strikes, acts of God, or any
other cause beyond Landlord's control, then Tenant may take possession when
Landlord notifies Tenant that the Premises are ready for possession, and the
term of this Lease shall commence on the first day of the first month following
such date and continue for the specified number of months thereafter,
notwithstanding the commencement and termination dates stated above. Tenant
shall owe no rent until December 1, 1997. Landlord shall have no liability for
such delays in delivery of possession, and neither party shall have the right to
terminate except that Tenant may, at any time prior to August 1, 1997, cancel
this Lease without liability if permission to construct, use, or furnish
necessary utilities to the Premises is denied or revoked by any governmental
agency or public utility with such authority.
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This Lease is subject to the following additional terms to which the
parties agree:
1. USE OF THE PREMISES.
1.1. Tenant shall use the Premises only for the purpose of conducting the
following business:
Administrative, production and warehouse space for a manufacturer or
assembler of electronic equipment and related office, equipment and warehouse
areas, including a clean room.
If such use is prevented by any law or governmental regulation,
Tenant may use the Premises for other reasonable uses.
1.2. In connection with its use, Tenant shall at its expense comply with
all applicable laws, ordinances, and regulations of any public authority,
including those requiring alteration of the Premises because of Tenant's
specific use; shall create no nuisance nor allow any objectionable liquid, odor,
or noise to be emitted from the Premises; shall store no gasoline or other
highly combustible materials on the Premises which would violate any applicable
fire code or regulation nor conduct any operation that will increase Landlord's
fire insurance rates for the Premises; and shall not overload the floors or
electrical circuits of the Premises. Landlord shall have the right to approve
the installation of any power-driven machinery by Tenant and may select a
qualified electrician whose opinion will control regarding electrical circuits
and a qualified engineer or architect whose opinion will control regarding floor
loads. Allowable ground floor load shall be 500 pounds per square foot. Tenant
shall have the right to, at Tenant's own cost and expense, make modifications to
the floor to accommodate Tenant's equipment and machinery. Tenant shall submit
plans and specifications pertaining to the equipment and modifications required
to the floor for review and approval by Landlord prior to installing such
equipment and making such modifications.
1.3. Tenant may erect a sign stating its name, business, and product
after first securing Landlord's written approval of the size, color, design,
wording, and location, and all necessary governmental approvals. No signs shall
be painted on the Building or exceed the height of the Building. All signs
installed by Tenant shall be removed upon termination of this Lease with the
sign location restored to its former state.
1.4. Tenant shall make no alterations, additions, or improvements to the
Premises or change the color of the exterior without Landlord's prior written
consent and without a valid building permit issued by the appropriate
governmental agency. Upon termination of this Lease, any such alterations,
additions, or improvements (including without limitation all electrical,
lighting, plumbing, heating and air-conditioning equipment, doors, windows,
partitions, drapery, carpeting, shelving, counters, and physically attached
fixtures) shall at once become part of the realty and belong to Landlord unless
the terms of the applicable consent provide otherwise, or Landlord requests that
part or all of the additions, alterations, or improvements be removed. Tenant
may make non-structural modifications to its manufacturing process area at a
cost not to exceed $75,000.00 without receiving Landlord's prior written
consent. The original tenant improvements constructed at the commencement of
the lease term shall be approved by Landlord and Landlord may not condition its
acceptance of the improvements with removal at the end of the term.
2. SECURITY DEPOSIT. NONE REQUIRED.
3. UTILITY CHARGES; MAINTENANCE.
3.1. Tenant shall pay when due all charges for electricity, natural gas,
water, garbage collection, janitorial service, sewer, and all other utilities of
any kind furnished to the Premises during the lease term. If charges are not
separately metered or stated, Landlord shall apportion the utility charges on an
equitable basis. Landlord shall have no liability resulting from any
interruption of utility services caused by fire or other casualty, strike, riot,
vandalism, the making of necessary repairs or improvements, or any other cause
beyond Landlord's reasonable control. Tenant shall control the temperature in
the Premises to prevent freezing of any sprinkler system.
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3.2. Landlord shall repair and maintain the roof, gutters, downspouts,
exterior walls, building structure, foundation, exterior paved areas, and curbs
of the Premises in good condition. Except for such obligations of Landlord,
Tenant shall keep the Premises neatly maintained and in good order and repair.
Tenant's responsibility shall include maintenance and repair of the electrical
system, plumbing, drainpipes to sewers, air-conditioning and heating systems,
overhead and personnel doors, and the replacement of all broken or cracked glass
with glass of the same quality. Tenant shall refrain from any discharge that
will damage the septic tank or sewers serving the Premises.
3.3. If the Premises have a separate entrance, Tenant shall keep the
sidewalks abutting the Premises or the separate entrance free and clear of snow,
ice, debris, and obstructions of every kind.
4. TAXES, ASSESSMENTS, AND OPERATING EXPENSES.
4.1. In conjunction with monthly rent payments, Tenant shall each month
pay a sum representing Tenant's proportionate share of real property taxes and
operating expenses for the Premises. Such amount shall annually be estimated by
Landlord in good faith to reflect actual or anticipated costs. Upon termination
of this Lease or at periodic intervals during the term hereof, Landlord shall
compute its actual costs for such expenses during such period. Any overpayment
by Tenant shall be credited to Tenant, and any deficiency shall be paid by
Tenant within fifteen (15) days after receipt of Landlord's statement.
Landlord's records of expenses for taxes and operating expenses may be inspected
by Tenant at reasonable times and intervals. Landlord shall, at a minimum,
provide Tenant with annual estimates ninety (90) days after the end of the
preceding calendar year.
4.2. Tenant's proportionate share of real property taxes shall mean that
percentage of the total assessment affecting the Premises which is the same as
the percentage which the rentable area of the Premises bears to the total
rentable area of all buildings covered by the tax statement. Tenant's
proportionate share of operating expenses for the Building shall be computed by
dividing the rentable area of the Premises by the total rentable area of the
Building. If in Landlord's reasonable judgment either of these methods of
allocation results in an inappropriate allocation to Tenant, Landlord shall
select some other reasonable method of determining Tenant's proportionate share.
4.3. Real property taxes charged to Tenant hereunder shall include all
general real property taxes assessed against the Premises or payable during the
lease term, installment payments on Bancrofted special assessments, and any rent
tax, tax on Landlord's interest under this Lease, or any tax in lieu of the
foregoing, whether or not any such tax is now in effect. Tenant shall not,
however, be obligated to pay any tax based upon Landlord's net income.
4.4. Operating expenses charged to Tenant hereunder shall include all
usual and necessary costs of operating and maintaining the Premises, Building,
and any surrounding common areas including, but not limited to, the cost of all
utilities or services not paid directly by Tenant, property insurance, property
management, maintenance and repair of landscaping, parking areas, and any other
common facilities. Operating expenses shall not include roof replacement or
correction of structural deficiencies of the Building. Notwithstanding the
above, Tenant's proportionate share of property taxes and operating expenses
shall not exceed $.09 per square foot per month for calendar year 1997 and $.11
per square foot per month for calendar year 1998. The increase in Tenant's
proportionate share of operating expenses shall not exceed four percent (4%)
annually, on a cumulative basis, for the remaining term of this Lease, exclusive
of real estate taxes.
5. PARKING AND STORAGE AREAS.
5.1. Tenant, its employees, and customers shall have the non-exclusive
right to use any private parking spaces immediately adjacent to the Premises as
shown on the attached Exhibit B. Tenant shall control the use of such parking
spaces so that there will be no unreasonable interference with the normal
traffic flow, and shall permit no parking on any landscaped or unpaved surface.
Under no circumstances shall trucks serving the Premises be permitted to block
streets.
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5.2. Tenant shall not store any materials, supplies, or equipment
outside in any unapproved or unscreened area. If Tenant erects any visual
barriers for storage areas, Landlord shall have the right to approve the design
and location. Trash and garbage receptacles shall be kept covered at all times.
6. TENANT'S INDEMNIFICATION; LIABILITY INSURANCE.
6.1. Tenant shall not allow any liens to attach to the Premises as a
result of its activities. Tenant shall indemnify and defend Landlord from any
claim, liability, damage, or loss arising out of any activity on the Premises by
Tenant, its agents, or invitees or resulting from Tenant's failure to comply
with any term of this Lease.
6.2. Tenant shall carry general liability insurance on an occurrence
basis with combined single limits of not less than $1,000,000. Such insurance
shall be provided by an insurance carrier reasonably acceptable to Landlord and
shall be evidenced by a certificate delivered to Landlord stating that the
coverage will not be canceled or materially altered without ten (10) days'
advance written notice to Landlord. Landlord shall be named as an additional
insured on such policy.
7. PROPERTY DAMAGE; SUBROGATION WAIVER.
7.1. If fire or other casualty causes damage to the Building or the
Premises in an amount exceeding thirty percent (30%) of the full construction-
replacement cost of the Building or Premises, respectively, Landlord may elect
to terminate this Lease as of the date of the damage by notice in writing to
Tenant within thirty (30) days after such date. Otherwise, Landlord shall
promptly repair the damage and restore the Premises to their former condition as
soon as practicable. Should Landlord be unable to repair the Building or the
Premises within 180-days of the date that the fire or other casualty occurs,
Landlord shall notify Tenant in writing of its inability to do so and Tenant
shall have the option to terminate this Lease by giving Landlord thirty (30)
days notice of its intent to do so. Rent shall be reduced during the period to
the extent the Premises are not reasonably usable for the use permitted by this
Lease because of such damage and required repairs.
7.2. Landlord shall be responsible for insuring the Building, and Tenant
shall be responsible for insuring its personal property and trade fixtures
located on the Premises.
7.3. Neither party shall be liable to the other for any loss or damage
caused by water damage, sprinkler leakage, or any of the risks covered by a
standard fire insurance policy with extended coverage and sprinkler leakage
endorsements, and there shall be no subrogated claim by one party's insurance
carrier against the other party arising out of any such loss.
8. CONDEMNATION.
If a condemning authority takes the entire Premises or a portion
sufficient to render the remainder unsuitable for Tenant's use, then either
party may elect to terminate this Lease effective on the date that title passes
to the condemning authority. Otherwise, Landlord shall proceed as soon as
practicable to restore the remaining Premises to a condition comparable to that
existing at the time of the taking. Rent shall be abated during the period of
restoration to the extent the Premises are not reasonably usable by Tenant, and
rent shall be reduced for the remainder of the term in an amount equal to the
reduction in rental value of the Premises caused by the taking. All
condemnation proceeds shall belong to Landlord, except for any such proceeds
awarded by the condemning authority for the value of the leasehold, Tenant's
improvements, moving expenses, and any other items of the award specifically
associated with Tenant's occupancy or leasehold interest.
9. ASSIGNMENT AND SUBLETTING.
9.1. Tenant shall not assign its interest under this Lease nor sublet the
Premises without first obtaining Landlord's consent in writing, which consent
shall not be unreasonably withheld or delayed. This provision shall apply to
all transfers by operation of law or through mergers and changes in control of
Tenant. Landlord's prior consent shall not be required for any assignment,
sublease or other transfer of Tenant's interest in the Premises or the lease to
any
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corporation with which Tenant may merge or consolidate or become affiliated
as a parent, subsidiary, holding company otherwise, or to an entity in which
Tenant has a controlling interest. A subsequent public offering and
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sale of stock in Tenant's business, or a transfer of any amount of Tenant's
stock shall not constitute a change in ownership of Tenant or an assignment of
this Lease. No assignment shall relieve Tenant of its obligation to pay rent or
perform other obligations required by this Lease and no one assignment or
subletting shall be a consent to any further assignment or subletting. If Tenant
assigns this Lease or sublets the Premises for an amount in excess of the rent
called for by this Lease, one-half of such excess shall be paid to Landlord
promptly as it is received by Tenant.
9.2. Subject to the above limitations on transfer of Tenant's interest,
this Lease shall bind and inure to the benefit of the parties, their respective
heirs, successors, and assigns.
10. DEFAULT.
Any of the following shall constitute a default by Tenant under this
Lease:
10.1. Tenant's failure to pay rent or any other charge under this Lease
within ten (10) days after Landlord's written notice that a payment is due and
unpaid, or failure to comply with any other term or condition within twenty (20)
days following written notice from Landlord specifying the noncompliance. If
such noncompliance cannot be cured within the thirty (30) day period, this
provision shall be satisfied if Tenant commences correction within such period
and thereafter proceeds in good faith and with reasonable diligence to effect
compliance as soon as possible.
10.2. Tenant's insolvency; assignment for the benefit of its creditors;
Tenant's voluntary petition in bankruptcy or adjudication as bankrupt, or the
appointment of a receiver for Tenant's properties.
11. REMEDIES FOR DEFAULT.
11.1. In case of default as described in Paragraph 10 above, Landlord
shall have the right to the following remedies which are intended to be
cumulative and in addition to any other remedies provided under applicable law:
11.1.1. Terminate this Lease without relieving Tenant from its
obligation to pay damages.
11.1.2. Retake possession of the Premises by summary proceedings or
otherwise, in which case Tenant's liability to Landlord for damages shall
survive the tenancy. Landlord may, after such retaking of possession, relet the
Premises upon any reasonable terms.
11.1.3. Recover damages caused by Tenant's default which shall
include reasonable attorneys' fees at trial and on any appeal therefrom.
Landlord may xxx periodically to recover damages as they occur throughout the
lease term, and no action for accrued damages shall bar a later action for
damages subsequently accruing. Landlord may elect in any one action to recover
accrued damages plus damages attributable to the remaining term of the Lease
equal to the difference between the rent under this Lease and the reasonable
rental value of the Premises for the remainder of the term, discounted to the
time of judgment at the rate of ten (10%) percent per annum.
11.1.4. Make any payment or perform any obligation required of
Tenant so as to cure Tenant's default, in which case Landlord shall be entitled
to recover all amounts so expended from Tenant, plus interest at the rate of ten
percent (10%) per annum from the date of the expenditure.
11.2. Landlord shall not be in default unless Landlord fails to perform
obligations required of Landlord under this Lease within twenty (20) calendar
days after Landlord's receipt of written notice by Tenant specifying wherein
Landlord has failed to perform such obligations; provided, however, that if the
nature of Landlord's obligation is such that more than twenty (20) calendar days
are required for performance, then Landlord shall not be in default if Landlord
commences performance within such twenty (20) calendar day period and thereafter
diligently prosecutes that same to completion. If Landlord fails to correct a
default following such notice, Tenant may make the correction and any amounts so
expended, plus interest at the default rate stated
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in Paragraph 11.1.4, shall be recoverable from Landlord, but Tenant may not have
any right to offset such amounts against rent due under this Lease. This
paragraph shall also apply to Landlord's failure to repair as stated in
Paragraph 3.2.
12. SURRENDER ON TERMINATION.
12.1. On expiration or early termination of this Lease, Tenant shall
deliver all keys to Landlord, have final utility readings made on the date of
move out, and surrender the Premises clean and free of debris inside and out,
with all mechanical, electrical, and plumbing systems in good operating
condition, all signing removed and defacement corrected, and all repairs called
for under this Lease completed. The Premises shall be delivered in the same
condition as at the commencement of the term, including all original tenant
improvements approved by Landlord, subject only to depreciation and wear from
ordinary use. Tenant shall remove all of its furnishings and trade fixtures
that remain its property and restore all damage resulting from such removal.
Failure to remove said property shall be an abandonment of same, and Landlord
may dispose of it in any manner without liability.
If Tenant fails to vacate the Premises when required, Landlord may elect either
to treat Tenant as a tenant from month to month, subject to all provisions of
this Lease except the provision for term, or to eject Tenant from the Premises
and recover damages caused by wrongful holdover. Notwithstanding the foregoing,
Tenant may hold over in the Premises for a period of up to nine (9) months
following the expiration of the lease term by giving Landlord written notice of
intent to hold over at least 150 days prior to expiration of the lease term.
All provisions of this Lease shall apply during the hold over term, except that
rent for the renewal period shall be an amount agreed upon by parties at least
90 days prior to expiration of the lease term, but in no case less than that of
the last month of the lease term and no more than 115% of the rent for the last
month of the lease term.
13. LANDLORD'S LIABILITY.
13.1. Landlord warrants that so long as Tenant complies with all terms
of this Lease it shall be entitled to peaceable and undisturbed possession of
the Premises free from any eviction or disturbance by Landlord or persons
claiming through Landlord.
13.2. All persons dealing with Pacific Realty Associates, L.P.
("Partnership") must look solely to the property and assets of Partnership for
the payment of any claim against Partnership or for the performance of any
obligation of Partnership as neither the general partner, limited partners,
employees, nor agents of Partnership assume any personal liability for
obligations entered into on behalf of Partnership (or its predecessors in
interest) and their respective properties shall not be subject to the claims of
any person in respect of any such liability or obligation. As used herein, the
words "property and assets of partnership" exclude any rights of Partnership for
the payment of capital contributions or other obligations to it by the general
partner or any limited partner in such capacity.
14. MORTGAGE OR SALE BY LANDLORD; ESTOPPEL CERTIFICATES.
14.1. This Lease is and shall be prior to any mortgage or deed of trust
("Encumbrance") recorded after the date of this Lease and affecting the Building
and the land upon which the Building is located. However, if any lender holding
an Encumbrance secured by the Building and the land underlying the Building
requires that this Lease be subordinate to the Encumbrance, then Tenant agrees
that this Lease shall be subordinate to the Encumbrance if the holder thereof
agrees in writing with Tenant that so long as Tenant performs its obligations
under this Lease no foreclosure, deed given in lieu of the foreclosure, or sale
pursuant to the terms of the Encumbrance, or other steps or procedures taken
under the Encumbrance shall affect Tenant's rights under this Lease. If the
foregoing condition is met, Tenant shall execute the written agreement and any
other documents required by the holder of the Encumbrance to accomplish the
purposes of this paragraph.
14.2. If the Building is sold as a result of foreclosure of any
Encumbrance thereon or otherwise transferred by Landlord or any successor,
Tenant shall attorn to the purchaser or transferee.
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14.3. Either party shall within twenty (20) days after notice from the
other execute and deliver to the other party a certificate stating whether or
not this Lease has been modified and is in full force and effect and specifying
any modifications or alleged breaches by the other party. The certificate shall
also state the amount of monthly base rent, the dates to which rent has been
paid in advance, and the amount of any security deposit or prepaid rent. Failure
to deliver the certificate within the specified time shall be conclusive upon
the party of whom the certificate was requested that the Lease is in full force
and effect and has not been modified except as may be represented by the party
requesting the certificate.
15. DISPUTES - ATTORNEYS' FEES.
In the event of any litigation arising out of this Lease, the prevailing
party shall be entitled to recover from the other party, in addition to all
other relief provided by law or judgement, its reasonable costs and attorneys'
fees incurred both at and in preparation for trial and any appeal or review,
such amount to be as determined by the court(s) before which the matter is
heard. Disputes between the parties which are to be litigated shall be tried
before a judge without a jury.
16. SEVERABILITY.
If any provision of this Lease is held to be invalid, unenforceable or
illegal the remaining provisions shall not be affected and shall be enforced to
the fullest extent permitted by law.
17. INTEREST AND LATE CHARGES.
Rent not paid within ten (10) business days of when due shall bear
interest from the date due until paid at the rate of ten percent (10%) per
annum. Landlord may at its option impose a late charge of $.05 for each $1.00
of rent for rent payments made more than ten (10) days late in addition to
interest and other remedies available for default.
18. GENERAL PROVISIONS.
18.1. Waiver by either party of strict performance of any provision of
this Lease shall not be a waiver of nor prejudice the party's right otherwise to
require performance of the same provision or any other provision.
18.2. Subject to the limitations on transfer of Tenant's interest, this
Lease shall bind and inure to the benefit of the parties, their respective
heirs, successors, and assigns.
18.3. Landlord shall have the right to enter upon the Premises after
giving Tenant twenty-four (24) hour verbal notice, excepting that Landlord shall
not be required to give such notice in times of emergency, to determine Tenant's
compliance with this Lease, to make necessary repairs to the Building or the
Premises, or, when accompanied by Tenant, to show the Premises to any
prospective tenant or purchasers. During the last two months of the term,
Landlord may place and maintain upon the Premises notices for leasing or sale of
the Premises.
18.4. If this Lease commences or terminates at a time other than the
beginning or end of one of the specified rental periods, then the rent
(including Tenant's share of real property taxes, if any) shall be prorated as
of such date, and in the event of termination for reasons other than default all
prepaid rent shall be refunded to Tenant or paid on its account.
18.5. Tenant shall within ten (10) days following Landlord's written
request deliver to Landlord a written statement specifying the dates to which
the rent and other charges have been paid, whether the Lease is unmodified and
in full force and effect, and any other matters that may reasonably be requested
by Landlord.
18.6. Notices between the parties relating to this Lease shall be in
writing, effective when delivered, or if mailed, effective on the second day
following mailing, postage prepaid, to the address for the party stated in this
Lease or to such other address as either party may specify by notice to the
other. Rent shall be payable to Landlord at the same address and in the same
manner.
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19. ENVIRONMENTAL.
19.1. Definitions. The term "Environmental Law" shall mean any federal,
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state or local statute, regulation or ordinance or any judicial or other
governmental order pertaining to the protection of health, safety or the
environment. The term "Hazardous Substance" shall mean any hazardous, toxic,
infectious or radioactive substance, waste and material as defined or listed by
any Environmental Law and shall include, without limitation, petroleum oil and
its fractions.
19.2. Use of Hazardous Substances. Tenant shall not cause or permit any
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Hazardous Substance to be spilled, leaked, disposed of or otherwise released on
or under the Premises. Tenant may use and sell on the Premises only those
Hazardous Substances typically used and sold in the prudent and safe operation
of the business permitted by Paragraph 1 of this Lease. Tenant may store such
Hazardous Substances on the Premises, but only in quantities necessary to
satisfy Tenant's reasonably anticipated needs. Tenant shall comply with all
Environmental Laws and exercise the highest degree of care in the use, handling
and storage of Hazardous Substances and shall take all practicable measures to
minimize the quantity and toxicity of Hazardous Substances used, handled or
stored on the Premises.
19.3. Notices. Tenant shall immediately notify Landlord upon becoming
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aware of the following: (a) any spill, leak, disposal or other release of a
Hazardous Substance on, under or adjacent to the Premises; (b) any notice or
communication from a governmental agency or any other person relating to any
Hazardous Substance on, under or adjacent to the Premises; or (c) any violation
of any Environmental Law with respect to the Premises or Tenant's activities on
or in connection with the Premises.
19.4. Spills and Releases. In the event of a spill, leak, disposal or
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other release of a Hazardous Substance on or under the Premises caused by Tenant
or any of its contractors, agents or employees or invitees, or the suspicion or
threat of the same, Tenant shall (i) immediately undertake all emergency
response necessary to contain, cleanup and remove the released Hazardous
Substance, (ii) promptly undertake all investigatory, remedial, removal and
other response action necessary or appropriate to ensure that any Hazardous
Substances contamination is eliminated to Landlord's reasonable satisfaction,
and (iii) provide Landlord copies of all correspondence with any governmental
agency regarding the release (or threatened or suspected release) or the
response action, a detailed report documenting all such response action, and a
certification that any contamination has been eliminated. All such response
action shall be performed, all such reports shall be prepared and all such
certifications shall be made by an environmental consultant reasonably
acceptable to Landlord.
19.5. Condition Upon Termination. Upon expiration of this Lease or
--------------------------
sooner termination of this Lease for any reason, Tenant shall remove all
Hazardous Substances and facilities used for the storage or handling of
Hazardous Substances from the Premises and restore the affected areas by
repairing any damage caused by the installation or removal of the facilities.
Following such removal, Tenant shall certify in writing to Landlord that all
such removal is complete.
19.6. Assignment and Subletting. Notwithstanding the provisions of
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Paragraph 9 of this Lease, it shall not be unreasonable for Landlord to
withhold its consent to any assignment, sublease or other transfer of the
Tenant's interest in this Lease if a proposed transferee's anticipated use of
the Premises involves the generation, storage, use, sale, treatment, release or
disposal of any Hazardous Substance.
19.7. Indemnity.
19.7.1. By Tenant. Tenant shall indemnify, defend and hold harmless
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Landlord, its employees and agents, any persons holding a security interest in
the Premises, and the respective successors and assigns of each of them from and
against any and all claims, demands, liabilities, damages, fines, losses, costs
(including without limitation the cost of any investigation, remedial, removal
or other response action required by Environmental Law) and expenses (including
without limitation attorneys' fees and expert fees in connection with any trial,
appeal, petition for review or administrative proceeding) arising out of or in
any way relating to the use, treatment, storage, generation, transport, release,
leak, spill, disposal or other handling of Hazardous Substances on the
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Premises by Tenant or any of its contractors, agents or employees or invitees.
Tenant's obligations under this paragraph shall survive the expiration or
termination of this Lease for any reason. Landlord's rights under this paragraph
are in addition to and not in lieu of any other rights or remedies to which
Landlord may be entitled under this agreement or otherwise.
19.7.3. By Landlord. Landlord shall indemnify, defend and hold
-----------
harmless Tenant and its employees and agents and the respective successors and
assigns of each of them from and against any and all claims, demands,
liabilities, damages, fines, losses, costs (including without limitation the
cost of any investigation, remedial, removal or other response action required
by Environmental Law) and expenses (including without limitation attorneys' fees
and expert fees in connection with any trial, appeal, petition for review or
administrative proceeding) arising out of or in any way relating to the actual
or alleged use, treatment, storage, generation, transport, release, leak, spill,
disposal or other handling of Hazardous Substances on the Premises by Landlord,
or any of its contractors, agents or employees or by Landlord's previous tenants
of the Premises. Landlord's obligations under this paragraph shall survive the
expiration or termination of this Lease for any reason. Tenant's rights under
this paragraph are in addition to and not in lieu of any other rights or
remedies to which Tenant may be entitled under this Agreement or otherwise.
20. OPTION TO RENEW.
20.1. If not then in default, Tenant shall have the option to renew this
lease for two additional 5-year terms by giving Landlord written notice of
intent to extend at least 180 days prior to expiration of the preceding term.
All provisions of this lease shall apply during the extended term, except that
rent for the renewal period shall be an amount determined on a fair market value
basis and agreed upon by parties at least 90 days prior to commencement of the
renewal period. If Tenant elects not to exercise the first 5-year renewal
period, then the second 5-year renewal period shall be null and void.
20.2. For the purposes of this Paragraph 20, the term "fair market
value" shall mean the Base Rent, expressed as an annual rent per square foot of
floor area, which Landlord would have received from leasing the Premises (which
shall be valued for purposes of this determination as warehouse shell space with
power, light and heat and with a quantity of office space equal to that within
the Premises at the end of the original lease term) for the renewal term to an
unaffiliated person which is not then a tenant in the Park, assuming that such
space were to be delivered in "as-is" condition, and taking into account the
rental which such other tenant would most likely have paid for such premises,
including market escalations, provided that Fair Market Value shall not in any
event be less than the Base Rent for the Premises as of the expiration of the
lease term.
21. OPTION TO CANCEL.
Tenant shall have a right to cancel this Lease at the end of the 57th,
69th and 81st months of the lease term by giving Landlord 180 days' advance
written notice of its intent to do so and by paying Landlord a termination
penalty equal to all unamortized tenant improvements and leasing commissions as
further described on the attached Exhibits D, E and F within ninety (90) days of
Tenant's notice of intent to cancel to Landlord.
22. RIGHTS OF NOTICE.
22.1. Tenant shall have the First Right of Notice for any available
space within Building G, Evergreen Business Park, which is adjacent to and
immediately east of the Premises. In addition, provided that the existing
tenants do not require expansion space, Tenant shall have the First Right of
Notice for any available space within Building F, Evergreen Business Park.
Landlord shall notify Tenant of the availability of such spaces, and Tenant
shall have five (5) business days to enter into good faith negotiations for the
First Right of Notice spaces in the event Landlord begins negotiations with a
third party for any of the First Right of Notice spaces. Landlord agrees to
negotiate in good faith with Tenant for the lease of such First Right of Notice
space.
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22.2. Tenant shall have the Second Right of Notice for the approximately
7,354 square feet of space adjacent and immediately west of the Premises.
Landlord shall notify Tenant of the availability of such space, and Tenant shall
have five (5) business days to enter into good faith negotiations for the Second
Right of Notice space in the event Landlord begins negotiations with a third
party for the Second Right of Notice space. Landlord agrees to negotiate in good
faith with Tenant for the lease of such Second Right of Notice space.
22.2.1. The monthly base rent for the Second Right of Notice shell
space shall be the same rate as called for in this Lease. Subject to Landlord's
prior review and approval of the scope of improvements proposed by Tenant,
Landlord shall provide a tenant improvement allowance not to exceed $15.00 per
square foot, amortized at the same interest rate formula as this Lease and with
a termination penalty consistent with the termination dates calculated on the
unamortized tenant improvements and leasing commissions.
23. ACCEPTANCE UPON TERMINATION.
Notwithstanding the provisions of Paragraphs 1.4 and 12.1, in the event
that Tenant exercises its right to cancel this Lease as described in Paragraph
21 above, Landlord shall attempt to market the Premises to a party desirous of
retaining all or a portion of the special tenant improvements constructed by
Tenant within the Premises. Notwithstanding the foregoing, Landlord shall
reserve the right to require that Tenant remove the special tenant improvements,
excluding the office portion of the Premises, prior to Tenant's vacation of the
Premises. The special tenant improvements to be removed shall include, but not
be limited to: (i) a mezzanine; (ii) clean rooms; (iii) electrical distribution
below the production area ceiling; (iv) heating, ventilating and air
conditioning distribution below the production area ceiling; (v) a waste
treatment system including a recycle system; (vi) a DI water system; (vii) an N2
Generator including compressors; and (viii) a CDA system including compressors..
24. USE OF CHEMICALS.
Subject to the provisions of Paragraph 19, Tenant shall be entitled to
use and store those chemicals listed on the attached Exhibit G. Tenant shall
not store chemicals in amounts in excess of those listed on Exhibit G without
first obtaining Landlord's approval and the approval of any governmental agency
with such authority.
25. TENANT IMPROVEMENTS.
25.1. Landlord agrees to provide a tenant improvement allowance of
$507,420.00 ($15.00 per square foot) (hereinafter referred to as "the
Allowance") for construction of certain tenant improvements within the Premises
(the "Tenant Improvements"). Landlord shall deliver the funds for the Allowance
to Tenant upon completion of the Tenant Improvements and upon Landlord's receipt
of a Certificate of Occupancy for the Premises.
25.1.1. Landlord agrees to amortize one-half of the Allowance over
180 months at twelve percent (12%) interest, resulting in a rental increase of
$3,015.00 per month (the "First Amortized Amount") commencing December 1, 1997,
as shown on Exhibit D.
25.1.2. Landlord agrees to amortize one-half of the Allowance over 88
months at twelve percent (12%) interest, resulting in a rental increase of
$4,305.00 per month (the "Second Amortized Amount") commencing December 1, 1997,
as shown on Exhibit E.
25.1.3. The Allowance shall include one-half of the cost of the
demising wall separating the Premises from the adjacent space.
25.2. Tenant shall, using the Allowance, cause construction of tenant
improvements within the Premises in accordance with Plans and Specifications
called for in this paragraph and subject to Landlord's prior consent, which
consent shall not be unreasonably withheld or delayed. All improvements shall
be constructed using Evergreen Business Park, Tenant Improvements Standards in
accordance with Exhibit C. The Tenant Improvements shall be installed using
industry standard materials installed in a good and workmanlike manner by
qualified craftsmen. The Tenant
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Improvements shall be constructed from Plans and Specifications, subject to
Landlord's prior consent,
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which consent shall not be unreasonably withheld or delayed, prepared by
Tenant's architect subject to applicable building codes as interpreted by the
City of Hillsboro, Oregon and shall be made a part of this Lease by Lease
Amendment upon completion.
25.3. Tenant shall, at its sole cost and expense, obtain any permits,
inspections and certificates required to construct the Tenant Improvements and
to occupy the Premises.
25.4. Landlord agrees to allow Tenant to utilize its preferred vendors
for the construction of the Tenant Improvements subject to Landlord's prior
consent, which consent shall not be unreasonably withheld or delayed.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the respective dates set opposite their signatures below, but this Agreement on
behalf of such party shall be deemed to have been dated as of the date first
above written.
LANDLORD:
PACIFIC REALTY ASSOCIATES, L.P.,
a Delaware limited partnership
By: PacTrust Realty, Inc.,
a Delaware corporation,
its General Partner
Date: _____________June 5, 1997 By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Marketing Director
Address for Notices/Rent Payments to Landlord:
00000 X.X. Xxxxxxx Xxxxxxx, #300-WMPC
Xxxxxxxx, XX 00000
TENANT:
PLANAR AMERICA, INC.,
an Oregon corporation
Date: __________June 4, 1997 By: /s/ Xxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
---------------------------------------
Title: Chief Financial Officer
---------------------------------------
Date: __________June 4, 1997 By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------------
Title: Executive Vice President
---------------------------------------
Address for Legal Notices to Tenant:
Planar America
----------------------------------------------
0000 XX Xxxxxxx Xxxxx
----------------------------------------------
Xxxxxxxxx, XX 00000
----------------------------------------------
Address for Invoices to Tenant:
Planar America
----------------------------------------------
0000 XX Xxxxxxx Xxxxx
----------------------------------------------
Xxxxxxxxx, XX 00000
----------------------------------------------
Tenant Employer Identification Number:
00-0000000
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